Causation

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Causation

Establish: actionable damage and then existence of a duty of care via established duty situations e.g. police (CHILDREN and PARENT?), sufficient proximity of relationship, reasonable foresight of harm and fair, just and reasonable to impose a duty of care (Caparo criteria set out in Caparo v Dickman 1990). Then establish a breach of duty via reasonable person test, Bolam test or emergency/sportsplayers/children and then establish causation.

Causation - requires that there is a link between the defendant's negligence and the claimant's injury, essentially asking if the defendant caused the harm.

Remoteness - requires that there is a strong enough link between the negligence and the damages to eliminate causes that are too distant from the original negligence to be

Pragmatic approach: philosophical, cannot take a philosophical approach because no one would ever be liable. Effects produced by causes and causes are effects of other causes. Complex relationship with cause and effect. Defendants could always fix the responsibility on someone else or another event further back in the chain of causation.

Common sense approach: Lord Wright: "causation is to be understood as the man in the street would understand it", common sense but causation with legal language just makes it more complicated.

Factual causation. Test for this is But For test. But for the defendant's actions would the claimant have suffered a loss or damage; would the loss or damage have occurred without the defendant's input? Limits of the but for test: with more than one operative cause. Also limited by the scope of the duty of care owed by the defendant e.g. the doctor. Banque Bruxelles Lambert v Eagle Star Insurance Co 1997 (SAAMCo) , Lord Hoffman example: mountaineer about to undertake a difficult climb concerned about the fitness of his knee, goes to a doctor who negligently makes a superficial examination and declares the knee fit. Goes on climb which he would not have done if not pronounced fit and injures himself which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee fitness" - although it's clear that but for the doctor's negligence, he would not have gone on the climb, the doctor is not liable since the injury was not within the scope of his duty to the mountaineer which only related to knee fitness.

BPE Solicitors v Hughes Holland 2017 - Supreme Court reaffirmed SAAMCo 1997 and emphasised the importance of the scope of duty of care. Causation is not at issue because the loss or damage falls outside the scope of the doctor's duty of care.

Barnett v Chelsea and Kensington Hospital Management 1969 - doctor refused to examine a patient who later died of arsenic poisoning but it was held that he would have died of arsenic poisoning anyway, even if the doctor did intervene. The failure to treat was not the cause of death

Causation Summary:

Definitions of causation and remoteness.

Philosophical approach;

Common Sense approach (Lord Wright, man in the street);

Factual causation (But For Test) - definition and limitations e.g. outside scope of the defendant's doc:

Causation not an issue when the injury is outside the scope of the defendant's doc (SAAMCo 1997 Lord Hoffman's mountaineering example; BPE Solicitors v Hughes Holland 2017 reaffirmed SAAMCo.

Test applied when existing causes e.g. arsenic in Barnett 1969 and hypothetical causes that might of produced the loss or damage e.g. harness in McWilliams v Sir William Aroll Ltd 1962.

Problems with but for test: arise when multiple causes are identified. Unjust to separate. Celebrated example of 2 converging fires. Applying but for = neither d liable. Cumulative - both defendants liable for full extent of damage/apportion liability.

Concurrent: Indeterminate + Cumulative.

Indeterminate causes - more than 1 d, 1 oc. Summers v Tice 1948; USA, Cook v Lewis 1951, Canada. Hunting, more than 1 bullet. Pragmatic approach, reversed burden, both liable as tortfeasors. Not favoured in England: Hotson v East Berkshire AHA 1987 + Wilshire v Essex AHA 1988 is favoured. Court wants c to show balance of probabilities to show causation not by natural occurrences.

Cumulative causes - more than 1 oc caused by more than 1 d. Courts usual approach: because either neg act would have caused same outcome, each party liable for whole damage. The Koursk 1924. Another type of cum case: 1st and 2nd tortious acts combine causing a single result which might not have happened without the 2nd act: both ds may be liable if cannot be proved that 1st alone would cause end result: Fitzgerald v Lane 1987 - pelican crossing.

Consecutive/Successive causes: where 1 act succeeds another. Whether effect of 1st obliterated by effect of 2nd so 1st act no longer operating cause. Don't apply but for bc nobody becomes liable. Different to converging fires/cumulative bc we know the factual cause: in light of the 2nd act, the 1st act has no effect. Must distinguish from cases where 1st act has continuing effect into 2nd e.g. Performance Cars v Abraham 1962 - 2 collisions in a fortnight, needed respray both times, action for payment for respray from 2nd defendant not allowed by CoA because the 2nd tort had no effect given the continuing effect of the 1st.

PROOF OF CAUSATION: how courts approach the q of requiring claimant to prove the d's breach is the cause of injury in cases where the d's conduct competes with other possible explanations

All or nothing approach - most cases, claimant who bears burden of proof in civil trial must discharge that burden by meeting the normal civil standard of proof; show on bop 51%, binary 0-1, 1 = satisfied = treated as if it occurred. "the law operates on a binary system in which the only values are 0 and 1".

Material contribution to injury approach - less contentious, where there is innocent exposure (not due to neg) and guilty which is due to d's neg. D is held liable for having part caused the claimant's injury. Has to be applied where injury cannot be divided between separate factors bc those factors operate cumulatively and interdependently. Can't be held to specific part of injury, part-caused injury as a whole. Bonnington Castings v Wardlaw 1965. Lord Reid - on what is material. Any contribution which isn't 'de minimis no curat lex'.

Vindication of rights approach - Chester v Afshar [2004]

Material increase in risk approach - aka THE EXCEPTIONAL CAUSAL PRINCIPLE FROM MCGHEE/FAIRCHILD – Fairchild Principle

Completely different (a lot more contentious) and very controversial and EXCEPTIONAL

Analysis is applied where:

There are multiple potential sources of the risk which has eventuated in the claimant’s damage

There is a single agent responsible for that risk

There exists a ‘rock of uncertainty’ such that causation is impossible to prove in principle.

Types of causes:

Indeterminate - 1+ defendant but only 1 operating cause. Summers v Tice 1948, Cook v Lewis 1951, Hotson v East Berkshire AHA 1987 + Wiltshire v Essex AHA 1988.

Cumulative - (1) 1+ defendant causing 1+ operating cause. The Koursk 1924.

(2) 1st and 2nd acts combine = single result which wouldn't have happened without 2nd. Fitzgerald v Lane 1987.

Consecutive/successive - (1) 2nd effect obliterates 1st effect so 1st no longer operating cause. No BF Test.

(2) 1st act has continuing effect into 2nd e.g. Performance Cars v Abraham 1962.